Siegel v. JP Morgan Chase Bank, — So.3d —-, 2011 WL 4949794 (Fla. 4th DCA Oct 19, 2011)

This is the third 4th DCA appellate opinion arising out of this one case (see here, here). This time around the issue of “standing” was front and center. The remainder beneficiaries of a revocable trust are suing JP Morgan Chase, who served as trustee of the trust prior to the settlor’s death. The crucial facts from a trust administration point of view were the following:

Rautbord appointed JP Morgan Chase Bank as her trustee in 1995 . . . . At some point after the execution of the 1995 amendment, Rautbord developed severe dementia.

Incapacitated settlor of revocable trust = standing for remainder beneficiaries to sue trustee:

Because the settlor was incapacitated, she lacked the requisite mental capacity to knowingly consent to JP Morgan Chase’s actions as trustee of her revocable trust. This lack of knowing, competent consent is what opened the door to the remainder beneficiaries’ lawsuit against the bank after the settlor died. Here’s how the 4th DCA explained the law in New York that provides the remainder beneficiaries with standing to sue JP Morgan Chase. As reflected here in a similar 4th DCA case involving Bank of America, the result would likely be the same under Florida law.

In Siegel I, Judge Gross detailed New York law and concluded that the brothers did have standing to challenge the trust distributions. Specifically, the opinion held:

[U]nder New York law, after the death of the settlor, the beneficiaries of a revocable trust have standing to challenge pre-death withdrawals from the trust which [1] are outside of the purposes authorized by the trust and which [2] were not approved or ratified by the settlor personally or through a method contemplated through the trust instrument. By outside the purposes of the trust we mean any expenditures that were not “appropriate or advisable for the support, maintenance, health, comfort or general welfare of” Mrs. Rautbord.

Id. at 95–96 (emphasis in original). Explaining this holding, Judge Gross relied on New York law, which governs the trust:

The court in Estate of Morse, 177 Misc.2d 43, 676 N.Y.S.2d 407, 409 (N.Y.Sur.1998), described the broad reach of New York’s concept of standing:

In that light, it has been noted that “anyone who would be deprived of property in the broad sense of the word … is authorized to appear and be heard upon the subject” of whether a will that would thus affect him adversely should be admitted to probate ( Matter of Davis, 182 N.Y. [468, 472, 75 N.E. 530 (N.Y.1905) ] ). Accordingly, standing to object to probate does not require an interest that is “absolute”; a contingent interest will be enough ( see Matter of Silverman, 91 Misc.2d 125, 397 N.Y.S.2d 319). In other words, the uncertainty of an interest should not preclude its holder from seeking to protect it, i.e., she should have standing to object to a propounded instrument that makes the possibility of benefit even more remote or eliminates such possibility entirely.

Id. at 95–96. Judge Gross noted, “With an interest in the corpus of the trust after the death of their mother, the Siegels have standing to challenge the disbursements; they have alleged a concrete and immediate injury, caused by Novak and the Bank, which could be redressed by the circuit court. Without this remedy, wrongdoing concealed from a settlor during her lifetime would be rewarded.” Id. at 96 (emphasis added).

The mentally incapacitated settlor of a revocable trust can never knowingly “approve or ratify” any actions. No informed consent = potential future lawsuits for trustee.

Need informed consent from incapacitated trust settlor? Think court-appointed guardian . . .

When you serve as trustee of a revocable trust, your risk exposure is considerably less because under F.S. 736.0603(1), as long as the settlor is alive he or she is the only person you owe any fiduciary duties to. However, the lack of exposure to claims by remainder beneficiaries of a revocable trust is premised on the settlor’s ability to give informed consent to your actions. If the settlor is mentally incapacitated . . . EVERYTHING CHANGES!

So what can you do if you’re the trustee of a revocable trust whose settlor is mentally incapacitated? Well, one option is to simply resign. Saying “yes” to service as trustee of a revocable trust while the settlor is healthy is a world away from saying “yes” to service as trustee of the revocable trust of an incapacitated settlor. If you’re not going to resign, then you need to think about how you’re going to get informed consent for your actions as trustee. The goal is to make sure that perhaps years in the future, after the settlor has died and the remainder beneficiaries are examining – in hindsight – every move you ever made as trustee, no one can ever claim “wrongdoing [was] concealed from [the] settlor during her lifetime.”

The best (perhaps only) way to ensure the trustee has the informed consent of an incapacitated settlor is to petition for the appointment of a guardian and then account/report to that guardian (until the settlor dies, accounting/reporting to the revocable trust’s remainder beneficiaries may violate your duty of confidentiality to the settlor).

Once you have a court-appointed guardian, you’ve put in place the foundation for legally binding informed consent (thus foreclosing future lawsuits by disgruntled remainder beneficiaries). Building on that foundation, any trust accounting you serve on the settlor’s guardian that is subsequently approved of by court order in which all “interested persons” have been served (i.e., make sure you serve all of the revocable trust’s remainder beneficiaries in the context of the guardianship proceeding), will then legally bind the settlor and all remainder beneficiaries. Presto! No future lawsuits. If JP Morgan Chase had coupled these protective measures with a trust-accounting “limitations notice” triggering the shortened 6-month statute of limitations period for all items fully disclosed in each respective accounting/report [see F.S. 736.1008(2)], my guess is that any real (or even arguable) wrongdoing would have been caught early, corrected to the court’s satisfaction, and the beneficiaries of this trust would have been spared close to a decade of costly litigation after the settlor’s death.